Darrell V. McGraw, Jr., Esq.
D. Mark Snyder, Esq.
Attorney General Charleston, West Virginia
Barbara H. Allen, Esq. Attorney for Appellant
Managing Deputy Attorney General
Charleston, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
Thus, argues the appellant, the dispatcher could not have provided the
information about which the officer testified, and therefore the officer was lying. The
appellant further argues that because the officer was not telling the truth about the dispatcher
message, the subsequent arrest of the appellant was illegal, because it was tainted by the
officer's misconduct and not supported by probable cause. The appellant also argues that the
prosecution should have investigated before trial and learned that the substance of the
officer's testimony about the truck was wrong, and disclosed this fact to the defense.
On this basis, the appellant asked for a new trial, which request was refused by the circuit court.
The appellant must show, in order to be entitled to a new trial on the basis of newly-discovered evidence, the following:
A new trial will not be granted on the ground of newly discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated in his affidavit that plaintiff was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side.
Syllabus Point 1, State v. Crouch, 191 W.Va. 272, 445 S.E.2d 213 (1994) (citations omitted).
In ruling on the appellant's motion for a new trial, the circuit judge said:
I just feel like if there is any mistake here, it's a harmless
mistake or harmless error. Doesn't appear to me to rise to the
level of perjured testimony on the part of the officer merely
because there was an address that came back Mingo County _
or Monroe county or because the name on the title was
somewhat different than what the officer testified at trial. The
name on the title was Jay, J-A-Y, Jay, and it would take no great
leap of faith or certainly wouldn't take a great leap of faith on
my part if the officer told _ if the dispatcher told me over the
radio that a truck was registered to somebody named Jay Trent
and I had been following the truck and I happened to know that
Jimmy Trent or James Trent lived less than a hundred yards
away, it would take no great leap of faith on my part to think
that was _ the person whose name was on the title was the
same person that lived in that area.
Obviously, from what I'm hearing here today, there was a slight discrepancy. The Jay Trent on the title was the father of your client and not Jimmy Trent, who is here today. Obviously, there was a mistake . . . [but] it appears to me that this is something that was known all along and is probably not newly discovered evidence. But even if it were something that we only found out at this point, it doesn't seem like, to me, it's significant enough or likely to have significant _ to make enough of a difference on the outcome of the case to give rise to the granting of your motion.
We believe that the trial judge's assessment was correct: the so-called newly discovered evidence was not truly newly discovered, nor would it have made a significant difference at trial. At best it would only go to impeachment. We consequently find this assignment of error not to be meritorious.
We have carefully reviewed the appellant's other assignments of error and find them likewise to be without merit.